JUDGMENT : AIKMAN, J. This appeal arises out of a suit brought by the plaintiff, who is respondent here, for specific performance of a contract to sell certain land, and, in the alternative for damages. The court of first instance passed a decree for damages. 2. On appeal by the plaintiff the learned District Judge set aside the decree of the Munsif and decreed specific performance. 3. The defendant comes here in second appeal. In my opinion this appeal must succeed. It appears that the plaintiff encroached on defendant's land and began to build on it. The defendant brought a suit and got a decree for possession of the land. After this decree had been passed the parties came to an agreement whereby the present appellant Ram Dhan, undertook to convey the land to the plaintiff on payment by the plaintiff of Rs. 50 down, and on the plaintiff undertaking to pay the balance of the purchase-money namely Rs. 100, by Katik Sudi 15, 1949, corresponding to 4th November, 1892. 4. The appellant agreed that on the plaintiff paying up the full amount he would execute a sale-deed of the land in his favour. It was also stipulated between the parties that if the defendants should not see fit to sell, he was to refund the earnest money, Rs. 50, together with an additional sum of Rs. 50. The terms of the agreement are set forth in the receipt which the defendant gave for the Rs. 50, which receipt was filed by the plaintiff. The plaintiff, without paying the balance of the purchase-money and without waiting to have his title to the land completed began building on the land. As is remarked by Lord Justice FRY in his well-known work on Specific Performance (chapter 3, paragraph 141), the question always in cases, like the present is what is the contract. “Is it that one certain act shall be done with a sum annexed, whether by way of penalty or damages, to secure the performance of this very act? As is remarked by Lord Justice FRY in his well-known work on Specific Performance (chapter 3, paragraph 141), the question always in cases, like the present is what is the contract. “Is it that one certain act shall be done with a sum annexed, whether by way of penalty or damages, to secure the performance of this very act? or is it that one of two things shall be done at the election of the party who has to perform the contract, namely, the performance of the act or the payment of the sum of money?” In the former case the learned author says the specific performance may be decreed, but that in the latter, “the contract is satisfied by the payment of a sum of money, and there is no ground for proceeding against the party having the election to compel the performance of the other alternative.” I think there can be no doubt that the contract between the parties in this case was of the second description. This appears to me to be clear from the following passage from the document filed by the plaintiff:— “Aur agar humko,” that is, the defendant, “bai karana manzur na hoga, to zar bayana wapas karna hoga aur Pachas Rupia tawan ka dekar dakhal lelena.” 5. Here a sum is named to be substituted for the execution of the sale-deed at the election of the defendant. If the plaintiff chose to begin building on the land, he did so at his own risk and could not by his precipitate action deprive the defendant of the option which the latter had reserved to himself. 6. For these reasons I decreed the appeal with costs, and setting aside the decree of the lower appellate Court with costs, I restore that of the Court of first instance.